Page 98 - GSTL_2nd July 2020 _Vol 38_Part 1

16 GST LAW TIMES [ Vol. 38
the due date. Besides, it was argued that the Cenvat credit accumulated in the
erstwhile regime represents the property of the petitioner which is a vested right
in their favour. Such accrued or vested right cannot be taken away by the re-
spondents on account of failure to fulfil conditions which are merely procedural
in nature. The accumulated Cenvat credit is the property of the assessee and a
constitutionally protected right under Article 300A of the Constitution, which
cannot be taken away by framing Rules without there being any substantive
provision in this regard under the Act. On another note, it is urged that the time
limit specified in Rule 117 of CGST Rules is procedural in nature, and not a man-
datory provision, and thus period provided therein cannot be enforced so as de-
prive the petitioners from availing their vested right. In support of this conten-
tion, reliance is placed upon the decision of the Supreme Court in the case of SCG
Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd. - 2019 SCC
OnLine SC 226.
11. Mr. Amit Bansal, and other Learned Senior Standing Counsels for
the Revenue, on the other hand, have strongly opposed the petitions. They have
argued that the petitioners do not deserve any sympathy from this Court, as the
facts of each case exhibit a casual approach on their part. Petitioners’ failure to
file the declaration Form TRAN-1 within the due date is not attributable to any
technical glitches while uploading the forms. The delay is a result of their follies
and do not warrant relief similar to what has been granted by this Court in sev-
eral other cases. It is also pointed out that some of the petitioners attempted to
file TRAN-1 for the first time after the expiry of the last date for filing TRAN-1,
as admitted in the pleadings. The petitioners were negligent, and do not deserve
any leniency. Mr. Bansal defended Rule 117 of the CGST Rules by arguing that
under sub-section (1) of Section 164 of the CGST Act, Government is authorised
to make rules for carrying out the provisions of the Act on recommendation of
the Council. He submitted that the CGST Rules laid down by the Central Gov-
ernment, including the Rules impugned in the present petition, flow from the
Act and are in consonance with the intention of the legislature. Mr. Bansal em-
phasized on the words “in such manner as may be prescribed” which are appearing
in sub-section (1) of Section 140 as follows :
“A registered person, other than a person opting to pay tax under section
10, shall be entitled to take, in his electronic credit ledger, the amount of
Cenvat credit carried forward in the return relating to the period ending
with the day immediately preceding the appointed day, furnished by him
under the existing law in such manner as may be prescribed”
(emphasis supplied)
He submits that this provision empowers the Government to fix the time frame
for availing the carry forward of input tax credit by transitioning the Cenvat
credit into the GST regime. He further submits that benefit of taking credit is not
a vested right of an assessee and certainly cannot be claimed in perpetuity. The
same is subject to certain conditions, safeguards and limitations in such manner
as may be prescribed. Mr. Bansal further argued that the input tax credit is in the
nature of benefit/concession extended as per the scheme of this statute. The
rules, therefore, can be framed to limit the benefit while extending the conces-
sion. In support of his submissions, Revenue relied upon the case of Willowood

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